In Depth

The Indiana Court of Appeals reversed today a defendant's conviction of carrying a handgun without a license because
the circumstantial evidence doesn't support that the man had the requisite intent to constructively possess the gun.

In Donnell Jones v. State of Indiana, No. 49A02-0909-CR850, Donnell Jones appealed
his Class C felony carrying a handgun without a license conviction following his traffic stop for speeding. Jones, a mechanic,
was test-driving a customer's car on his way home from work and was drinking alcohol in the car. The police officer saw
Jones reaching around the front floor board of the car and in the back seat. It took the officer two attempts to stop Jones,
who drove away the first time the officer stopped him.

The officer found open containers of alcohol in the car. After Jones was arrested and transported, police found a handgun
under the driver's seat.

The state had to prove beyond a reasonable doubt that Jones carried the handgun without a license, and had actual or constructive
possession over the gun by showing he had the intent and capability to maintain control over the gun.

Jones testified he didn't know about the handgun and that he was just trying to hide the alcohol from the officer, but
the trial court discredited his testimony on that because Jones couldn't remember being pulled over the first time. The
jury found him guilty of carrying a handgun without a license as a Class C felony, for which he was sentenced to five years
executed. He also was sentenced to one year executed for operating a vehicle while intoxicated conviction, to be served concurrently
with the handgun sentence.

The Court of Appeals found sufficient evidence to support Jones' conviction of operating a vehicle while intoxicated,
but insufficient evidence supporting his conviction of carrying a handgun without a license, wrote Judge James Kirsch.

"In cases such as this, where the driver does not have exclusive possession of the vehicle for a long period of time
before the handgun is found, we are hesitant to impute possession of the handgun solely on control of the vehicle as evidence
of intent," wrote the judge.

In addition, Jones made no incriminating statements about the handgun found during the inventory of the car, and his actions
of reaching around the floorboard and other seats could be because he was moving alcohol containers. The evidence showed an
open bottle of gin on the hump of the front passenger side of the vehicle, unopened beer cans on the front floorboard, and
an open can of beer was on the rear floorboard behind the driver's seat.

The circumstantial evidence was inadequate to support an inference of intent to carry a handgun without a license beyond
a reasonable doubt.